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Wednesday, April 26, 2017

The amendment inter alia prescribes the minimum distance of 200 metres from an objectionable institution. The report submitted by the Deputy Commissioner of Excise records the distance between the gate of the hotel of the Respondent and the nearest objectionable institution (being Sree Bhagwati Ayappa Temple, Karuvannurthara) as 70 metres only. Consequent to the amendment to the Foreign Liquor Rules, the Government vide letter No. 8028/A2/2012/TD dated 26th April, 2012, called upon the Excise Commissioner, Thiruvananthapuram to examine the proposal of the Respondent. The Excise Commissioner, by a speaking order passed on 5th June, 2012, came to the conclusion that the application submitted by the Respondent deserved to be rejected and directed it to be returned to the Deputy Commissioner of Excise, Palakkad.= no fault can be found with the State Authority for calling upon the Excise Commissioner to examine the proposal and submit his fresh recommendation keeping in mind the amended provisions of the Foreign Liquor Rules. In other words, the application for grant of FL-11 licence submitted by the Respondent was required to be considered by the competent authority keeping in mind the amended provisions which came into force w.e.f. 18th April, 2012. That is precisely what has been done by the Excise Commissioner, as can be discerned from his speaking order dated 5th June, 2012, for invoking the restriction of distance of 200 metres from the objectionable site.Since the learned Single Judge of the High Court proceeded to decide the writ petition filed by the Respondent merely by referring to the pronouncement of the Division Bench of the same High Court in the case of Kallada Hotels and Resorts (supra), coupled with the fact that the Respondent had asked for a wider relief to declare the amendment of 18th April, 2012 as void to the extent it has introduced the restriction of distance of 200 meters from objectionable institutions for getting FL-11 licence, we deem it appropriate to relegate the parties before the learned Single Judge to decide the writ petition afresh, keeping in mind the settled legal position. Accordingly, we set aside the impugned judgment of the Division Bench dated 12th August, 2014 in Writ Appeal No.950 of 2014 as also the judgment of the Single Judge in Writ Petition (c) No.14220 of 2012 dated 4th February, 2014. Further, we remand the Writ Petition(C) No.14220 of 2012 and restore it to the file of the Single Judge of the High Court of Kerala for being decided afresh on other issues in accordance with law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5204 OF 2017
(Arising out of SLP(C) No.35461 of 2014)

State of Kerala & Ors. …. Appellants

Versus

M/s. Palakkad Heritage Hotels .... Respondent

J U D G M E N T

A.M.KHANWILKAR, J.

1. The Respondent constructed a hotel which has been classified as
Heritage (Basic) Category for five years (w.e.f. 1st March, 2012 till 28th
February, 2017). The Respondent submitted an application for grant of a
Beer/Wine Bar FL-11 Licence under the Foreign Liquor Rules. That
application was processed by the Deputy Commissioner of Excise, Palakkad.
On the basis of the report submitted by the said authority, the Excise
Commissioner of Thiruvananthapuram forwarded his recommendation to the
Secretary to Government Taxes Department, Government of Kerala, vide a
letter dated 28th March, 2012. The Excise Commissioner duly recommended
grant of sanction for FL-11 License to the Respondent as per the rules.
While the said recommendation was pending consideration before the State
Government, the Foreign Liquor Rules came to be amended on 18th April,
2012. The amendment inter alia prescribes the minimum distance of 200metres from an objectionable institution. The report submitted by theDeputy Commissioner of Excise records the distance between the gate ofthe hotel of the Respondent and the nearest objectionable institution(being Sree Bhagwati Ayappa Temple, Karuvannurthara) as 70 metres only.Consequent to the amendment to the Foreign Liquor Rules, the Governmentvide letter No. 8028/A2/2012/TD dated 26th April, 2012, called upon theExcise Commissioner, Thiruvananthapuram to examine the proposal of theRespondent. The Excise Commissioner, by a speaking order passed on 5thJune, 2012, came to the conclusion that the application submitted by theRespondent deserved to be rejected and directed it to be returned to theDeputy Commissioner of Excise, Palakkad.

2. For answering the controversy at hand, we deem it apposite to
reproduce the said communication in its entirety:

The Deputy Commisisoner of Excise, Palakkad has reported that the
nearest objectionable institution is the Sree Bhagavathy Ayyappa Temple,
Karuvannurthara which is 70 meters away from the gate of the hotel.

Before the amendment made vide Government order read as 6th above, as
per rule 13 (3) of Forensic Liquor Rules, there was a restriction that no
FL-3 licence shall be issued to hotels which are located within 200 meters
from objectionable site (educational institution, temple, church, mosque or
burial ground, schedule caste/schedule tribe colony ) but those hotels
other than in the private sector having four, five star, five star deluxe
classification will be exempted from the distance restrictions in the
interest of promotion of tourism and also in the case of hotels in private
sector of above categories and hotels having heritage, heritage grand and
heritage classic classification is issued by Ministry of Tourism,
Government of India, the distance limit was only 50 meters from
objectionable site. Vide Government order read as 6th above, the said rule
is modified by deleting the exemption of distance restrictions in the case
of hotels in private sector of above categories, thereby at present the
distance limit to those hotels in private sector of above categories,
thereby at present the distance limit of those hotels in private sector of
all categories from the objectionable site is 200 meters.

In the above circumstances and as reported by the Joint Excise
Commissioner, Central Zone, Executive and Deputy Commissioner of Excise,
Palakkad and since the nearest objectionable institution viz. the Sree
Bhagavathy Ayyappa Temple, Kanvannurthara is located only 70 metres away
from the gate of the hotel the application read as 4th above is hereby
rejected and returned to the Deputy Commissioner of Excise, Palakkad.

Sd/-
Excise Commissioner”

3. Against this decision, the Respondent filed a writ petition before
the High Court of Kerala, being Writ Petition (C) No.14220 of 2012 for the
following reliefs:
“i) call for the records leading to Ext. P7 and quash the same by issuing
a writ of certiorari or other appropriate writ, order or direction;
ii) declare that petitioner is entitled to get an FL-11 licence as per
Ext. P-2 application.
iii) Declare that Ext. P6 amendment to the extent it introduce distance of
200 meters from objectionable institutions for getting FL-11 license is
discriminatory and without any basis;
iv) Declare that if the hotels located within 200 meters from
objectionable institutions are permitted to conduct the licenses, the
petitioner is also entitled to get license as per Ext. P2 application;
v) Issue a writ of mandamus or other appropriate writ, order or
direction commanding the respondent 1 to 5 to issue an FL-11 license under
Rule 13 (11) of the Foreign Liquor Rules, beer/wine parlour license, vide
Ext. P-2 application on the basis of the rule/law prevailed on the date of
Ext. P-5 (28.3.2012);
vi) Issue a writ of mandamus or other appropriate writ, order or
direction commanding the respondents 1 to 5 not to renew FL-3 and FL-11
licenses, which are conducting within 200 meters from the objectionable
institutions, if the petitioner is denied FL-11 license; and
vii) Grant such other and further relief as this Hon’ble Court may deem
fit and proper in the interest of justice.”

4. The learned Single Judge of the High Court vide Judgment dated 4th
February, 2014, allowed the said writ petition on the finding that the
Excise Commissioner had issued an order in favour of the Respondent (writ
petitioner) on 28th March, 2012, sanctioning FL-11 licence. The Single
Judge then placed reliance on the decision of the Division Bench of the
same High Court in the case of Kallada Hotels and Resorts vs. State of
Kerala[1], wherein it was held that the law to be applied for consideration
of the application submitted by the Respondent for grant of licence must be
as on the date on which the Excise Commissioner made recommendation for
grant of licence to the Respondent, as was in force on that date. The
appellant herein had pointed out to the learned Single Judge that the said
decision was challenged before this Court by the Government and the same
was pending. The learned Single Judge, however, rejected that contention
as follows:

“6. However, admittedly, as per the decisions of this Court, which stand
now, when the Excise Commissioner recommends the application for grant of
licence on the basis of a Rule in force on that date, subsequent amendment
should not be relied on to assail the same. Viewed in that profile, the
petitioner is entitled to get the relief as sought for in this writ
petition.

Therefore, the writ petition is allowed.

Ext. P7 is quashed and respondents 1 to 5 are directed to issue FL-11
licence to the petitioner under Rule 13(11) of the Foreign Liquor Rules,
beer/wine parlour licence vide Ext. P2 application on the basis of rule/law
prevailed on the date of Ext. P5, i.e., 28.03.2012.

This exercise shall be completed within a period of three months from
today.”

5. Against this decision, the appellant filed a Writ Appeal being No.950
of 2014 before the Division Bench of the High Court. The same has been
dismissed on 12th August, 2014, in the following terms:

“1. Heard the learned Senior Government Pleader and the learned counsel
appearing for the respondent/writ petitioner.

2. The impugned judgment has been rendered by a learned Single Judge
relying on the decision of a Division Bench in Kallada Hotels and Resorts
v. State of Kerala [2012(2) KLT 167]. That decision notwithstanding, the
fact of the matter remains that even as per the later bench decision in
State of Kerala and Others v. M. P. Shiju [2014(2) KHC 343 (DB)], the
respondent/writ petitioner is entitled to succeed, in view of the fact that
the law has been succinctly stated to the effect that the eligibility has
to be considered applying the law as on the date of consideration of the
matter by the Excise Commissioner. This being, pointedly, the legal issue
involved in this writ appeal, the question raised has, necessarily, to be
answered against the State. This appeal, therefore, fails.

In the result, this writ appeal is dismissed. No costs.”

6. The later decision adverted to by the Division Bench in the case of
M.P. Shiju (supra), was challenged by the State Government before this
Court by way of SLP(C) No.25780 of 2014. The same was disposed of on 22nd
July, 2016 in the following terms:

“ORDER
Learned counsel for the parties are agreed that this petition has
become infructuous in view of the position rendered to this Court in Civil
Appeal No. 4157 of 2015 titled as The Kerala bar Hotels Association & Anr.
V. State of Kerala & Ors. decided on 29.12.2015.
The special leave petition is accordingly disposed of as
infructuous.”

7. Since the said relied upon decision in M P Shiju’s case has been
affirmed by this Court, even this appeal must follow the same suit.
However, the said SLP has been disposed of by this court on the basis of
concession made by the counsel for the parties - that it had become
infructuous in view of the judgment of this Court in the case of The Kerala
Bar Hotels Association & Anr. V. State of Kerala & Ors[2].

8. On a bare perusal of the decision in the Kerala Bar Hotels
Association (supra), it is seen that the question examined by this Court
was whether the policy to ban the consumption of alcohol in public or
exception carved out to the policy in favour of Five Star Hotels violates
the rights of the Hotels of Four Star and below classification under
Articles 14 and 19. The other decision considered by the High Court for
allowing the writ petition filed by the Respondent is the case of Kallada
Hotels & Resorts (supra). The correctness of the decision of the Division
Bench of the High Court was not in issue before this Court in the case of
Kerala Bar Hotels Association (supra).

9. Indeed, the decision of the Division Bench in Kallada Hotels &
Resorts (supra) has been affirmed by this Court by dismissal of SLP(C)
No.18392 of 2012 on 20th June, 2012 in the following terms:

In the facts and circumstances of the case, we are not inclined to
interfere with the impugned judgment.

The Special Leave Petition is, accordingly, dismissed. Question of
law is kept open.”

Even the review petition filed by the State against the said decision,
being Review Petition(C) No.1409 of 2012, came to be dismissed on 14th
August, 2012.

10. What is relevant to note is that, in the case of Kallada Hotels &
Resorts (supra), the Division Bench of the High Court had adverted to the
decision of this Court in the case of State of Kerala & Anr. v. B.6
Holidays Resorts Pvt. Ltd.[3], wherein it has been held that an
application for grant of liquor licence has to be considered with reference
to the rules/law prevailing or in force on the date of consideration of
application by the Excise Authorities and not with reference to the law as
on the date of the application. After noticing the decision of this Court,
the Division Bench on the facts of the case before it allowed the Writ
Appeal. It will be useful to advert to the relevant portion of the Division
Bench decision:

“4. ………………………………………………………Going by the judgment of the Hon’ble Supreme
Court the law applicable is the law that is in force when the Excise
authorities at various levels consider an application for FL3 licence, as
is evidenced by the records produced in this case, the application
submitted before the Excise Commissioner goes for enquiry to the Deputy
Commissioner who make his recommendations which in turn is endorsed by the
Joint Commissioner of Excise. Thereafter the application goes to
Government and with the permission of the Government the Excise
Commissioner issues the licence. In this case the initial denial of
licence to the appellant was on account of the mistake about the distance
from the temple which was wrongly reported as within the prohibited
distance. It is seen that within one month of issuance of the first report
namely Ext. P6 dated 25/08/2011 the Joint Excise Commissioner corrected the
mistake on 22/09/2011 vide Ext. P9 recommending appellant’s case for
issuance of licence. If Ext. P6 was issued with correct distance without
committing a mistake and at least if the correct report namely Ext. P9
dated 22/09/2011 was acted upon in time the appellant would have got
licence even before the new policy was introduced. Respondent has not
brought to the notice of this Court any other objection against entitlement
of the appellant for licence. We feel appellant cannot be declined licence
on account of the mistake committed by the Excise authorities in Ext. P6
report. In any case since by 22/09/2011, correct report was submitted vide
Ext. P9 we feel the amended rule which came into force on 09/12/2011 cannot
be applied to appellant. So much so, we hold that appellant is entitled to
have their application finally considered and disposed of by the Government
and Excise Commissioner with reference to Rule 13 (3) as it stood prior to
the amendment introduced to it with effect from 09/12/2011. Accordingly
the Writ Appeal is allowed vacating the observation of the learned Single
Judge in this regard and with a direction to the respondent to consider and
pass orders on appellant’s application at the earliest.”

11. In our view, the question as to what date should be reckoned as the
date of consideration of licence has not been squarely dealt with in this
decision. Indubitably, the processing of the application for grant of
licence commences from the date of application. The final decision on the
proposal is required to be taken by the State Government. The date on
which a formal, final decision is taken by the competent authority, alone,
would be the relevant date. The recommendation made by the subordinate
authority, even if significant for taking a formal decision by the
competent authority, will be of no avail.

12. In the present case, the learned Single Judge has assumed the date
on which recommendation was made by the Excise Commissioner i.e. 28th
March, 2012, as the relevant date. That assumption is untenable. For, that
was not the date on which the final decision was taken by the competent
authority. Whereas, before a final decision could be taken by the competent
authority on the application submitted by the Respondent, the Foreign
Liquor Rules were amended on 18th April, 2012. The application submitted
by the Respondent for grant of licence, unquestionably, must be treated as
pending and under consideration on this date.

13. A priori, no fault can be found with the State Authority for callingupon the Excise Commissioner to examine the proposal and submit his freshrecommendation keeping in mind the amended provisions of the Foreign LiquorRules. In other words, the application for grant of FL-11 licence submittedby the Respondent was required to be considered by the competent authoritykeeping in mind the amended provisions which came into force w.e.f. 18thApril, 2012. That is precisely what has been done by the ExciseCommissioner, as can be discerned from his speaking order dated 5th June,2012, for invoking the restriction of distance of 200 metres from theobjectionable site.

14. Since the learned Single Judge of the High Court proceeded to decidethe writ petition filed by the Respondent merely by referring to thepronouncement of the Division Bench of the same High Court in the case ofKallada Hotels and Resorts (supra), coupled with the fact that theRespondent had asked for a wider relief to declare the amendment of 18thApril, 2012 as void to the extent it has introduced the restriction ofdistance of 200 meters from objectionable institutions for getting FL-11licence, we deem it appropriate to relegate the parties before the learnedSingle Judge to decide the writ petition afresh, keeping in mind thesettled legal position.

15. Accordingly, we set aside the impugned judgment of the Division Benchdated 12th August, 2014 in Writ Appeal No.950 of 2014 as also the judgmentof the Single Judge in Writ Petition (c) No.14220 of 2012 dated 4thFebruary, 2014. Further, we remand the Writ Petition(C) No.14220 of 2012and restore it to the file of the Single Judge of the High Court of Keralafor being decided afresh on other issues in accordance with law.

16. The appeal is partly allowed in the above terms with no order as to
costs.